As a follow-on to our post last year about remote (Zoom) depositions), we received a suggestion that we examine MDL orders to see how they have been handling remote deposition procedure during the COVID-19 pandemic. That made sense to us because in MDLs every procedural jot and tittle is gone over with a fine-toothed comb. We asked our crack legal assistants to review our internal library of MDL procedural orders (yes, we have such a thing) to see what recent MDL transferee judges – advised by the parties – have had to say about the conduct of remote depositions.
We start with the Manual for Complex Litigation. The most recent edition is pre-COVID, but it does contain a rather elementary discussion of remote depositions:
Telephonic or videoconferenced depositions can reduce travel costs. Federal Rule of Civil Procedure 30(b)(7) allows the court to order or the parties to stipulate to taking a deposition “by telephone or other remote electronic means”. . . . Through use of . . . videoconference, distant witnesses may be examined by counsel from counsel’s offices, with the court reporter located with the witness or, by stipulation, at one of the attorneys’ offices. . . . Remote depositions are most often used for relatively brief examinations that do not involve numerous documents, but may also be used to reduce travel costs. . . . To ensure that [witnesses] are not coached, ground rules should specify who may be present with the [witness] during the examination.
Manual for Complex Litigation (4th), at 86-87. This commentary does recognize two of the issues we addressed in our prior post – difficulties with use of documents, and the need to prevent surreptitious coaching of the witness being deposed. The Manual also discusses general issues concerning the presentation of video depositions of any sort at trial. See Id. at 144-45.
Numerous MDLs have entered orders authorizing remote depositions during the COVID-19 pandemic. Without digging too deeply, we’ve reviewed:
- In re Blackbaud, Inc., Customer Data Security Breach Litigation, MDL No. 2972, Stipulated Order (D.S.C. March 10, 2021).
- In re Generic Pharmaceuticals Pricing Antitrust Litigation, MDL No. 2724, PTO No. 159 (E.D. Pa. Feb. 12, 2021).
- In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Devices Liability Litigation, MDL No. 2846, CMO 30 (S.D. Ohio Dec. 14, 2020) (“Davol”).
- In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, MDL No. 2875, CMO 20 (D.N.J. Nov. 17, 2020).
- In re Onglyza (Saxagliptin) & Kombiglyze XR (Saxagliptin & Metformin) Products Liability Litigation, MDL No. 2809, Order Regarding Remotely Conducted Depositions (E.D. Ky. Oct. 6, 2020).
- In re Zantac (Ranitidine) Products Liability Litigation, MDL No. 2924, PTO 48 (S.D. Fla. Oct. 5, 2020).
- In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, MDL No. 2775, CMO 17 (D. Md. June 9, 2020) (“BHR”).
- Huntington/Cabell v. ABDC, MDL No. 2804 (remanded), Remote Deposition Protocol (S.D.W. Va. June 6, 2020) (“H/C”).
- In re Proton-Pump Inhibitor Products Liability Litigation, MDL No. 2789, CMO 40 (D.N.J. May 20, 2020) (“PPI”).
We particularly wish to thank Debbie Ford, the Reed Smith legal assistant who runs the firm’s MDL pretrial order electronic library. We would also like to thank the folks at Esquire Deposition Solutions for demonstrating their technology, so we better understand exactly what these orders are addressing.
As we expected, these MDL-related remote deposition protocols cover just about every conceivable aspect of the conduct of remote depositions. In the rest of this post, we have tried to organize the various, and sometimes conflicting, provisions of these seven MDL-related remote deposition orders into something that we, and other lawyers contemplating remote depositions, could use as a checklist for creating similar protocols in future litigation.
“All depositions . . . shall be conducted via videoconference, unless all parties agree to conduct the deposition in person.” Valsartan Testimony ¶1; accord Blackbaud ¶2; Davol ¶2.
“Hybrid” remote depositions – where some participants are physically present, and others attend via Zoom or similar teleconference services, are permissible. Blackbaud ¶37; Generic Pharmaceuticals Pricing ¶2; Davol ¶1; Zantac at p.1.
Objections to conducting a deposition remotely must be made in writing a set time in advance of the deposition and must be “supported by clear and convincing evidence of unfair prejudice or harm suffered by the movant.” Valsartan Testimony ¶3. Cf. Blackbaud ¶14 (objection process does not require clear and convincing evidence); BHR §I(L).
Either the witness or any counsel otherwise entitled to attend the deposition can require the deposition to occur remotely. Generic Pharmaceuticals Pricing, ¶1; accord Blackbaud ¶12.
“No person shall be required to violate or disregard applicable health directives and recommendations or the advice of his or her physician.” H/C ¶1(A); accord Zantac ¶22. Cf. PPI ¶11 (participants must “comply with any government law, regulation or guidance regarding public health and safety during the COVID-19 pandemic”).
Some protocols provide that “[a] deposition that is noticed to take place remotely without advance agreement that the witness is available and able to proceed remotely at the noticed time shall be deemed void and unenforceable ab initio, and no motion shall be necessary to quash such a notice.” H/C ¶1(B), accord Zantac ¶1; PPI ¶1. Conversely, Blackbaud provides that “all depositions in this action shall be taken via remote videoconference . . . absent agreement, objection or court order to the contrary.” Blackbaud ¶2.
Absent some other agreement the noticing party “shall bear the costs” for the host technology, the court reporter, and the videographer. Blackbaud ¶22. Each party pays for “its own real-time feed, deposition transcript (rough and final), and video copy of the deposition.” Id.
Some MDL orders impose responsibility for ensuring the remote deposition’s accessibility to all participants on the noticing party. Generic Pharmaceuticals Pricing ¶2; H/C ¶1(F)(1). Others place this responsibility on the assigned court reporter or videographer. Onglyza, ¶2.
The notice of deposition shall specify that it is remote and must identify the host technology, and a contact person at the host technology service. H/C ¶2(C); accord Blackbaud ¶13; BHR §II(B).
“All remote witness deposition notices shall advise the planned location of the witness (city and state shall be sufficient identification for this purpose, with due regard for maintaining the privacy associated with home addresses), the court reporter, and the witnesses’ counsel who will attend remotely.” Davol ¶3; accord PPI ¶4 (also including locations of court reporter and videographer).
All parties to the deposition must be informed of: (1) the host technology to be used; (2) the “minimum technical specifications required . . . including equipment, software, and internet bandwidth requirements”; (3) any “additional software”; and (4) a contact person(s) “who will support the deposition and who can answer questions about technical requirements.” H/C ¶1(F)(1). Accord Davol ¶6 (notice to contain “detailed instructions”); Zantac ¶10; PPI ¶5; BHR §II(B). Cf. Blackbaud ¶¶15-16, 25 (establishing minimum requirements for host technology and notice).
The noticing party must provide the court reporter with the MDL remote deposition protocol prior to the deposition. Zantac ¶7; BHR §II(C).
Some protocols require a professional videographer to record all videotaped remote depositions. Generic Pharmaceuticals Pricing ¶6; Blackbaud ¶20; BHR §I(N). Others make separate video recording optional with parties making “best efforts” to “accommodate” such requests. Valsartan Recording ¶2.
The videographer shall supply a “certified recording” containing “only time on the record.” H/C ¶3(G).
Both a court reporter and a videographer shall participate in remote depositions, and “the deposition may not otherwise be recorded electronically.” Zantac ¶4; see Id. ¶24 (“the deposition may not otherwise be recorded electronically without the consent of the Parties”); accord Davol ¶11; PPI ¶13; BHR §I(N).
Some orders designate a particular videoconferencing service. Generic Pharmaceuticals Pricing, at p.1; Valsartan Communication ¶2.
Others specify only “use of a single court reporting service with a videoconferencing platform, which shall be used for all Remote Depositions.” BHR §I(N).
The identity of the host technology, once chosen, cannot be changed except through a formal meet and confer process. Davol ¶6 n.1.
The noticing party must arrange for technical support/training to be available to all participants through the host technology service. Blackbaud ¶23; H/C ¶3(D).
The noticing party must, upon request, make available a “real-time transcript.” Zantac, ¶14; accord Blackbaud ¶24; H/C ¶3(E). Cf. Blackbaud ¶23 (each participant pays for its own real-time transcript).
Technical difficulties do not waive any objections. Generic Pharmaceuticals Pricing ¶12; accord Zantac ¶33; PPI ¶17.
Delays or interruptions due to technical difficulties do not count against time limits. Blackbaud ¶27; Generic Pharmaceuticals Pricing ¶12; H/C ¶3(F); BHR §IV(A). That remote depositions may take longer may require the parties “to exceed time limits on deposition days,” necessitating “good faith efforts to make reasonable accommodations to allow all Parties adequate additional time.” Zantac, ¶36.
A remote deposition may be rescheduled due to prolonged technical difficulties. Blackbaud ¶41; Generic Pharmaceuticals Pricing ¶12; Zantac ¶33; BHR §IV(A); PPI ¶17.
To detect technical difficulties, the host technology must “automatically alert the court reporter if any Participant is disconnected.” H/C ¶3(F). The deposition is immediately halted until the issue causing the disconnection is resolved. Id.
Inadvertent disclosure of privileged information “due to technical disruption” or “captured by a videoconferencing or other recording device” does not waive any privilege. H/C ¶3(H); accord Zantac ¶30.
A “misplaced attendee” in a “breakout room” does not waive any privilege. Zantac ¶32.
If technical difficulties prevent a timely objection, the objection may be raised, by “sworn affidavit,” within “within five business days of receipt of the final transcript.” H/C ¶3(I).
Procedures for remote depositions of experts may vary. Zantac ¶2.
A consenting non-party may be deposed remotely subject to the same protocol in place for party witnesses. Generic Pharmaceuticals Pricing ¶15.
A remote deposition conducted under the protocols “may be admitted at trial with the same effect and pursuant to the same evidentiary rules as one recorded in-person.” Zantac ¶34; accord Blackbaud ¶39; Davol ¶11; Valsartan ¶¶(R)(3), Recording 1. Cf. PPI ¶13 (a deposition’s remote status “shall not, by itself, be a sufficient basis” for not admitting it “at trial with the same effect as a deposition video that was recorded in-person”).
Redeposition not allowed “absent a showing of good cause and obtaining leave of Court or agreement of the Parties.” Zantac ¶35; accord PPI ¶18.
“Alterations” of the remote deposition video recording may only be made to comply with trial deposition designations, and with full disclosure. Only cuts may be made, with “no color or other modification to the images.” Davol ¶11.
The parties may meet and confer to agree to resumption of in-person depositions when they believe “the COVID-19 pandemic has been sufficiently mitigated such that in-person depositions may occur.” Blackbaud ¶3 (setting out procedural steps).
The host technology must ensure a secure and confidential connection, including keeping track at all times of everyone attending. Generic Pharmaceuticals Pricing ¶10; accord Zantac ¶13. Where a protective order is in effect, only persons governed by the order may participate in remote depositions using protected documents. Onglyza, ¶3; H/C ¶1(E).
A set period (a day or two) before a remote deposition, the host technology service must be informed of the identities of all participants. Blackbaud ¶17; Davol ¶5; Valsartan Communication ¶2(a); Zantac ¶12; H/C ¶3(B).
“The noticing party and/or its [host technology] must ensure that only registered Participants and Attendees are sent a link to join the deposition.” Zantac ¶12.
Some orders are more rigorous than others in detailing security procedures:
- Blackbaud ¶23 (“security measures must include a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition, the ability to disable the ‘record’ feature in the [host technology], and end-to-end encryption. The [host technology] must also offer training prior to the deposition to the [witness] and attorneys”).
- Davol ¶7 (“security measures include using tools such as a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition,” “disabling the ‘record’ feature . . . for the witness and attending attorneys,” and “[s]election of a national court reporting service with an established” host technology service).
- Valsartan Communication ¶2(c) (“enable the waiting room feature . . . to ensure each participant is only admitted after their identities have been confirmed”).
- Onglyza ¶1 (the host technology “must be secured by password or comparable restriction”).
- Zantac ¶11 (host technology “must have implemented adequate security measures to ensure the confidentiality of the Remote Deposition”).
- H/C ¶1(E) (requiring “a secure [host technology] that, at a minimum, provides verifiable end-to-end encryption, requires unique user-identity authentication, and employs a [host technology]-moderated ‘green room’ or ‘lobby’ feature”).
- PPI ¶6 (“security measures include using tools such as a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition,” “disabling the ‘record’ feature . . . for the witness and attending attorneys,” and sharing electronic exhibits “only . . . vis a hyperlink . . . with the download function disabled”).
“All Participants who connect to the [host technology] must connect, through a private, password-protected network. Connection through a public Wi-Fi network is not permitted.” H/C ¶1(E)(1).
The noticing party must make available “technical and other information concerning the security of the proposed” host technology at least ten days before the deposition. H/C ¶1(E)(2).
All devices to be used to participate in the remote deposition “must be secured with appropriate firewalls, VPN, or similar security infrastructure.” H/C ¶1(F)(2).
No link to a remote deposition “should be posted on a website or otherwise made publicly available.” H/C ¶3(C); accord Zantac ¶13.
“The deposition conference password shall be provided in a separate e-mail communication from the e-mail communication providing the platform link.” H/C ¶3(C).
Confidential documents “shall be protected in the same manner as in an in-person deposition.” BHR §IV(F).
“[T]o prevent confidential documents from being downloaded . . ., electronic exhibits may only be shared . . . through the [host technology] via a hyperlink to file sharing software . . . with the download function disabled.” Zantac ¶11; accord Davol ¶7; PPI ¶6.
Nobody can attend a remote deposition “who is not identified on the record.” BHR §I(N); H/C ¶6(C).
After the remote deposition is completed, the participants “shall store the exhibits in a secure location that protects confidentiality.” H/C ¶5(D).
The only video feed to be recorded is that of the witness. Generic Pharmaceuticals Pricing ¶6; BHR §I(N); H/C ¶3(G). See Onglyza, ¶3 (requiring recording of witness at all times from the waist up).
The witness is to be questioned in “a quiet, well-lit, indoor location, while seated in front of a neutral background, and facing the camera.” Generic Pharmaceuticals Pricing ¶6; accord Blackbaud ¶28; Davol ¶3; Valsartan Recording ¶2(a-b); Zantac ¶19; H/C ¶1(D); PPI ¶10. Cf. BHR §IV(E) (participation shall be “in a space free of distractions and noise to the extent possible”).
During the deposition, no other applications should be running on the witness’ computer. Generic Pharmaceuticals Pricing ¶6; accord Zantac ¶20. “To confirm that no prohibited applications are open or running,” the host technology may require “the witness to share the screen of the witness’s electronic device.” Zantac ¶20.
A witness’ “special circumstances” should be accommodated without any “unreasonable burden” on the witness or others in the “household.” H/C ¶1(H); accord Zantac ¶17.
“All Remote Depositions shall be conducted during normal business hours within the witness’s local time zone.” Zantac ¶17; accord H/C ¶1(H); PPI ¶8.
During the deposition, the witness “is to have their device positioned so his or her camera shows them from the waist up and it must stay that way.” Onglyza ¶7; accord Valsartan Recording ¶2(c).
The witness is not allowed to wear a mask. Valsartan Recording ¶2(a); Onglyza ¶9; BHR §I(M).
Counsel taking and defending the deposition aren’t allowed to wear masks. BHR §I(M).
Most MDL orders allow remotely deposed witness to have their attorneys physically present, subject to some limitations:
- Blackbaud ¶37 (if “counsel for the [witness] . . . is present at the same location as the [witness] . . . the court reporter and a videographer shall be in the same location”).
- Generic Pharmaceuticals Pricing ¶¶1, 14 (“Nothing . . . shall be construed to preclude any witness and his or her attorney from appearing at the same location for any deposition;” a technician may also be physically present).
- Davol ¶3 (if counsel defending the witness is physically present, the side taking the deposition “shall be permitted the same number of participants and/or attendees at the deposition location with the witness”).
- Valsartan ¶(R)(4) (“Nothing in this Order prevents counsel for a witness from being present in-person to represent that witness.”).
- Zantac ¶21 (“Only the witness’s counsel and in-house counsel for the Party affiliated with the witness is/are permitted to be in the same location as the witness during a Remote Deposition, at the sole discretion of the witness.”).
- BHRI(M) (“The Deposing Counsel or the Defending Counsel may attend any Remote Deposition in-person, but only with the consent of the Witness, and consistent with applicable social-distancing and other health guidelines”).
- H/C ¶1(C) (“the noticing party’s choice to participate in a deposition remotely shall not be reason to prevent the defending counsel from defending the deposition in person”).
- PPI ¶10 (“Only the witness’s counsel and in-house counsel for the Party affiliated with the witness is/are permitted to be in the same location as the witness during a remote testimony, at the sole discretion of the witness.”).
- But see Onglyza, ¶6 (“The [witness] and all attorneys must be in separate physical locations and on separate devices”).
Counsel defending the witness shall notify the noticing party at least a week before the deposition whether counsel will be attending the client’s deposition in person or remotely, and must identify anyone else who will be physically present. Zantac ¶25; accord Davol ¶4 (two weeks notice); PPI ¶14 (notify “in advance”); BHR §I(M).
A physically attending defending attorney becomes “responsible” for ensuring that the witness remains on camera. Generic Pharmaceuticals Pricing ¶6.
“Defending lawyers and the witness shall spend whatever time is necessary in advance of the deposition to ensure that the witness is fully fluent in the use of the technology.” Davol ¶13.
The “questioning attorney” may “have a representative present at the [witness]’s location, subject to social distancing and safety considerations” for the purpose of handling hard copy exhibits. Valsartan Exhibits ¶1. Cf. BHR §I(O) (deposing counsel may have a “technical specialist and/or deposition “concierge” or other assistant” present at counsel’s expense “to assist with technology issues and/or presentation or use of exhibits”).
Remote witnesses must have an “available internet connection” that is “a Broadband connection (cable or satellite) of at least 10 Mbps or better.” H/C ¶1(F)(1); accord Blackbaud ¶19; Davol ¶6; Zantac ¶15.
Remote witnesses “may be required to use a keyboard, mouse, or other similar means to open and/or advance the pages of an exhibit.” Zantac ¶27; accord Valsartan Exhibits ¶2.
No later than two weeks before a remote deposition, the witness “shall confirm” possession of a computer and internet service meeting specified requirements for conducting the deposition. Generic Pharmaceuticals Pricing ¶8.
Should the witness lack the requisite technology, most protocols impose on the party noticing the deposition to “arrange to loan or otherwise provide such hardware to the witness at least 48 hours before the deposition.” Id.; accord Davol ¶6; Zantac ¶16; BHR §III(A); H/C ¶1(F)(2); PPI ¶7. Cf. Davol ¶13 (examining counsel is to make the remote host technology “available to the witness and his/her attorney and staff, well in advance of the scheduled depositions, to help explain and facilitate”).
Blackbaud uniquely places the burden of furnishing necessary technology on the party defending the deposition, where the witness is represented. Blackbaud ¶19 (“The Defending Party shall ensure that the Witness has access to technology that meets the minimum standards required.”). If a witness is unrepresented, the noticing party is responsible “provide sufficient technology to the [witness] for use in the deposition.” Blackbaud ¶26.
The noticing party shall arrange a test prior to each remote deposition to ensure that the technology works. Generic Pharmaceuticals Pricing ¶9; Davol ¶¶6, 13; Zantac ¶16; BHR §III(B); H/C ¶1(G)(2); PPI ¶7.
If the witness has insufficient connectivity, “the noticing party, through the court reporter, shall send the witness a portable Wi-Fi hotspot for use at the deposition.” Davol ¶¶6, 13 (at noticing counsel’s expense).
Witnesses may “reschedule remote depositions up until the time of the deposition due to either “changed circumstances in their health [or] their family’s health,” or “ professional obligations due to the COVID-19 pandemic. PPI ¶8.
If the witness is to produce documents, counsel “shall work cooperatively with the Witness in advance of the Remote Deposition to obtain copies of such documents and to ensure that all Participating Counsel and the Court Reporter are provided with hard or electronic copies of the documents at least three business days prior to the Remote Deposition.” BHR §III(E).
Prevention of Witness Coaching
Where the witness’ counsel is physically present, counsel must be visible “so that all Participants can see and hear the counsel for the witness or otherwise maintain a camera view showing both the witness and counsel (or any other persons assisting in the deposition, such as a paralegal or legal assistant).” Zantac ¶22; accord Generic Pharmaceuticals Pricing ¶6; H/C ¶3(A); PPI ¶11. That separate feed is not preserved once the deposition concludes. Generic Pharmaceuticals Pricing ¶6; H/C ¶6(B).
No unrecorded communications – physical or electronic − with witnesses during depositions are permitted. Blackbaud ¶40; Generic Pharmaceuticals Pricing ¶13; Davol ¶12; Valsartan Communication ¶2(d); Onglyza, ¶9; Zantac ¶31; BHR §IV(E); H/C ¶6(A); PPI ¶16.
“No counsel shall conduct a private communication with any [witness] while a question is pending, except for the purpose of determining whether a privilege should be asserted.” Blackbaud ¶31.
“No counsel, present live or remotely, with a witness shall engage in any improper signaling or non-verbal communication designed to influence an answer of a witness.” Davol ¶12 n.2.
A witness may confer with counsel during breaks to the same extent permitted during in-person depositions. Generic Pharmaceuticals Pricing ¶13; Davol ¶12; Onglyza, ¶9; Zantac ¶31; BHR §IV(C); H/C ¶6(A)(2); PPI ¶16.
All private “chat” functions are disabled. Blackbaud ¶21; Generic Pharmaceuticals Pricing ¶10; Valsartan Communication ¶2(d); Onglyza, ¶4; BHR §I(N); H/C ¶6(A)(1).
“[T]he witness shall not, without informing the noticing party, consult any outside sources of information other than the exhibits presented to the witness to obtain information in connection with his or her testimony.” Generic Pharmaceuticals Pricing ¶14.
“The [witness] will confirm that he does not have any other devices near him and that his cell phone is not within reach or visible to him.” Onglyza, ¶10.
Remote Deposition Procedure
Notice must be given to the host technology service and to all participants of any last-minute changes in any party’s designated attendee. Blackbaud ¶17; Zantac ¶12; H/C ¶3(B).
All participants must log in. Blackbaud ¶30.
“At the time of the deposition, the witness, all attorneys, and all support staff shall advise the court reporter of his or her physical location.” Zantac ¶18; accord Davol ¶5.
“At the beginning of each deposition, . . . the videographer shall begin the deposition with an on-the-record statement that includes: (i) the officer’s name and company affiliation; (ii) the date, time, and place of the deposition; (iii) the [witness’] name; (iv) the officer’s administration of the oath or affirmation to the [witness]; (v) the examining attorney for the deposition; and (vi) a statement on the record that all persons attending the deposition will be identified in the final stenographic transcript.” Zantac ¶8; accord Blackbaud ¶40; Valsartan Recording ¶¶3-4.
Remote witnesses may be sworn remotely by the court reporter. Blackbaud ¶¶35-36; Generic Pharmaceuticals Pricing ¶5; Davol ¶2; Valsartan Testimony ¶2; Onglyza ¶5; Zantac ¶¶3, 6; BHR §I(K); H/C ¶4; PPI ¶3.
All attendees “shall enable” “do not disturb” settings for applications not in use, “including but not limited to Skype, instant messaging, and/or e-mail notifications.” Zantac ¶23; accord Blackbaud ¶29; Davol ¶6; PPI ¶12.
“Attorneys questioning a witness shall always be visible to the witness and should endeavor to appear on video visible to the other participants while asking questions.” Generic Pharmaceuticals Pricing ¶6; accord Blackbaud ¶30; Zantac ¶23; PPI ¶12.
At the beginning of the deposition, the witness “will pan their video around the room . . . so that everyone attending remotely can see the room setup.” Onglyza, ¶6.
The host technology “must permit the defending lawyer(s) or other Attendees to assert objections in real time,” and the deposition must be paused if any problem prevents real-time objections. H/C ¶3(I).
“[T]hose attending but not defending or actively questioning the witness must mute their microphones.” Generic Pharmaceuticals Pricing ¶6; accord Blackbaud ¶17; Zantac ¶¶12, 23; BHR §IV(D); H/C ¶3(B); PPI ¶12. Cf. Davol ¶6 (host technology “may also establish a separate access or conference line that is for listening/viewing only but that will otherwise remain muted throughout the deposition”).
Orders also differ on what non-questioning participants are supposed to do:
- Blackbaud ¶30 (all attendees “shall log into” the host technology “so that all participants can hear each other and be aware of those who are present”).
- Generic Pharmaceuticals Pricing ¶16 (“All attendees other than the witness, witness’s counsel, the examining attorney, and the court reporter should endeavor to keep their camera off during the deposition”).
- Davol ¶6 (“participating attorneys must be visible to all other participants during the deposition”).
- With Onglyza, ¶6 (“all attorneys” must be on “video so that their faces can be seen at all times”).
- Zantac ¶12 (remote attendees who are not participating “shall also turn off their camera, such that they are not visible on screen”).
“Attendees appearing on video should not come and go while on the record during the deposition.” Generic Pharmaceuticals Pricing ¶16.
There shall be “breaks of at least five minutes each hour during the deposition, or at such other intervals as the Witness or court reporter may request.” BHR §IV(D).
If the host technology includes a “breakout room,” it shall be controlled by the court reporter. “Breakout” conversations are not recorded. Zantac ¶32; accord Blackbaud ¶32 (except the room is controlled by the host technology service).
Any attorney in the wrong breakout room “shall identify himself or herself and leave.” Zantac ¶32.
Noticing or defending counsel may, “in good faith,” state a belief that “any deposition has been adversely affected by the fact it was taken as a Remote Deposition” and thereafter seek leave of court “to continue or re-open the deposition at a later date, either remotely or in person,” with the requesting party bearing the “burden” of persuasion. BHR §V.(A).
Documents and Exhibits
Counsel taking and defending the remote deposition are jointly “responsible for ensuring that any exhibits they wish to use at the deposition can be shown to the Witness in a manner that enables [all participants] to review the complete exhibits (i.e., not a snapshot or excerpt) during the course of the deposition.” BHR §III(C).
“The court reporter shall maintain the official records of exhibits introduced via any means during a remote deposition.” Davol ¶7.
The host technology “must allow counsel to display and annotate exhibits for the witness, add and remove exhibits, and change the order in which the exhibits are presented to the witness.” Zantac ¶27; accord Davol ¶7; Valsartan Exhibits ¶2; PPI ¶15.
Some MDL orders consider pre-marked electronic exhibits to be the rule. Blackbaud ¶33; Generic Pharmaceuticals Pricing ¶11(A); Valsartan Exhibits ¶1; Onglyza, ¶14; PPI ¶15. Others require use of hard copy exhibits. H/C ¶5(A). Some are ambiguous. Davol ¶8.
Electronic documents are usually distributed through the host technology. Davol ¶8.
Where electronic documents are preferred, parties may also use hard copy paper exhibits. Generic Pharmaceuticals Pricing ¶11(A). A witness’ desire for paper copies of exhibits should be accommodated (except for documents only existing electronically), with disputes resolved by the MDL magistrate. Id.; accord Zantac ¶26.
Where hard copies are preferred, “the witness may not be required to review a document on the screen if he or she chooses not to do so and prefers instead to review the hard copy only.” H/C ¶5(E); PPI ¶15.
Where hard copies are preferred, and “an unusual circumstance arises where counsel conducting the witness examination could not have anticipated using an exhibit,” an electronic document may be presented “using a shared screen” with that document transmitted to all participants before questioning begins. H/C ¶5(F); accord Zantac ¶28.
“The witness and any party not taking the deposition will receive exhibits in real time, as would be the case in a standard, in-person deposition.” Valsartan Exhibits ¶1.
“Deposing Counsel and Defending Counsel need not use the same means of sharing exhibits. BHR §III(C).
Counsel defending the witness gets a second set of documents, if attending in person. If attending remotely, the defending attorney receives “electronic copies of the exhibits which are identical to the hard copy and electronic exhibits provided to the witness.” Zantac ¶26; PPI ¶¶14-15. Cf. Blackbaud ¶40 (noticing counsel “shall provide to opposing counsel an electronic copy of all documents to be shown to the witness during the deposition, either before the deposition begins or contemporaneously with the showing of each document to the witness”).
Paper copies of exhibits should be delivered to the witness and counsel a set time in advance of the remote deposition. They shall remained sealed and not reviewed by the witness or counsel until being unsealed on the record. Generic Pharmaceuticals Pricing ¶11(A); Davol ¶8; Onglyza, ¶¶12-13; Zantac ¶26; BHR §III(C); H/C ¶5(A); PPI ¶14.
To the extent the witness (such as a treating doctor) has received any documents ex parte from plaintiffs’ counsel prior to the deposition, at least three days before the deposition, “[p]laintiffs’ [c]ounsel shall send to [d]efendant’s [c]ounsel a copy of all such documents, either in hard copy or electronic copy (in the same manner as provided to the [w]itness. . . .”). BHR §III(D).
Any exhibit longer than 100 pages should be provided to the witness in hard copy. Zantac ¶26; accord Davol ¶8; PPI ¶14.
“[T]o the extent practicable, at least 48 hours prior to a remote deposition of a non-party healthcare provider or other third party (but not retained experts), the noticing party shall exchange with counsel of record copies of all documents shown to, or discussed with, the [witness].” Davol ¶9.
On pain of not being able to question on any exhibit not delivered, “[t]he noticing party and any other party who intends to use exhibits during the deposition shall deliver complete copies of all potential exhibits to be used to all Participants.” H/C ¶5(A).
If the witness is required to produce documents, those documents must “be provided to the noticing party two days prior to the deposition in electronic format for use at the deposition.” Onglyza, ¶11. This order assumes a technologically proficient witness.
An “examining attorney” may “utilize[e] electronic versions of unanticipated exhibits where reasonably necessary.” Zantac ¶26; accord Generic Pharmaceuticals Pricing ¶11(A); Onglyza, ¶13; H/C ¶5(A); PPI ¶14.
If necessary, electronic exhibits can be used, both by the noticing party (subject to a good faith requirement) and non-noticing participants. Generic Pharmaceuticals Pricing ¶11(A).
That an exhibit was provided electronically is not a basis for inadmissibility at trial. Zantac ¶27; accord Davol ¶7; Valsartan Exhibits ¶2; BHR §IV(B); PPI ¶15.
The party noticing the deposition is responsible for ensuring that electronic exhibits are accessible to all participants. Generic Pharmaceuticals Pricing ¶11(B). Witnesses “shall have the independent ability to manipulate the exhibit (scrolling, etc.) to facilitate their review.” Id.; accord Onglyza, ¶14. “[T]he witness must be afforded the independent ability to review the exhibit in its entirety.” Onglyza, ¶14; accord Zantac ¶28; H/C ¶5(F).
When the witness is being questioned about a document, that exhibit should be displayed “side-by-side with the witness.” Onglyza, ¶3.
“Following completion of the deposition, the [witness] will secure the exhibits that were used in the deposition in an envelope or box immediately following the deposition and will not alter any exhibit (mark up, remove pages, etc.) after the conclusion of the deposition.” Zantac ¶29.
After the remote deposition is completed, the witness, or his/her counsel, “shall arrange for the delivery of the official set of exhibits from the [witness] to the court reporter.” H/C ¶5(D).
Unused exhibits are not to be reviewed, and the noticing party may demand their return or destruction. Generic Pharmaceuticals Pricing ¶11(A); Davol ¶8; Zantac ¶29; Onglyza, ¶13; H/C ¶5(A,D); PPI ¶14.